Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge,
and Shumaker, Judge.

U N P U B L I
S H E D O P I N I O N

SHUMAKER, Judge

Ruling
that a police officer had illegally seized respondent Willie Montrelle Bryant,
the district court granted Bryant’s motions to suppress controlled substances
found in his jacket and to dismiss charges of illegal drug possession and
obstruction of legal process. We affirm
in part, reverse in part, and remand.

FACTS

On
February 13, 2000, a Marshall police officer stopped a car in a convenience
store parking lot for having only one headlight illuminated. The car was owned by Agnes Walker, the
mother of respondent Willie Montrelle Bryant, and Bryant was riding in it as a
passenger with two companions, one of whom was the driver. The officer recognized all three individuals
from prior police contacts.

Bryant
and the driver got out of the car, and the driver tried to repair the defective
light while Bryant spoke with the officer.
When the driver’s repair efforts failed, the officer told the driver to
get the headlight fixed as soon as possible and said he was “free to go at that
time.”

Before
the driver got back into the car the officer asked him if there were any
weapons or drugs in the car. The driver
replied that there were not. The
officer asked if he could search the car.
The driver responded that he did not care but that the car belonged to
Bryant. Bryant consented to a search.

With
the three individuals outside the car, the officer began his search. As he did so, Bryant started “slowly walking
away, kind of side-stepping as he was going to leave the area.” The officer told him to stay by the car but
Bryant continued to walk slowly toward the convenience store, saying that he
was going to use the telephone.

When
Bryant reached the store he turned the corner and the officer could no longer
see him. The officer ran to the corner
of the store and saw Bryant running.
The officer yelled, “stop” and then gave chase. Bryant ran into the store, removed his
jacket and threw it into an office, and continued to run until he reached a
closed entrance. The officer caught him
and told him to turn around and put his hands behind his back. Instead of complying, Bryant ran out of the
store. The officer caught him on the
street and arrested him.

The
officer then retrieved Bryant’s jacket and found in it cocaine, marijuana, and
$180. The state charged Bryant with
controlled substance crimes and obstructing legal process.

Arguing
that an illegal seizure occurred when the officer ordered him not to leave the
vicinity of the car while the officer searched it, Bryant moved to suppress the
drugs as “fruit of the poisonous tree.”
The trial court granted the motion and dismissed all charges. The state
brought this pretrial appeal.

D E C I S I O
N

Legality of the stop

We
review de novo a trial court’s determination of the legality of a limited
investigatory stop. State v.
Britton, 604 N.W.2d 84, 87 (Minn. 2000). This court will review findings of fact for clear error and give
“due weight to the inferences drawn from those facts” by the district
court. State v. Lee, 585 N.W.2d
378, 383 (Minn. 1998) (citing Ornelas v. United States, 517 U.S. 690,
699, 116 S. Ct. 1657 (1996).

For purposes of Article 1,
Section 10 of the Minnesota Constitution, which prohibits unreasonable searches
and seizures, a person has been seized if in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he or
she was neither free to disregard the police questions nor free to terminate
the encounter.

State v. Cripps, 533 N.W.2d 388, 391 (Minn.
1995). The finding of a seizure is not
dependent on actual use of force by the police or a suspect’s physical
submission to a show of authority. See In re
Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (declining to
follow the Supreme Court decision in California v. Hodari, 499 U.S. 621, 111 S.
Ct. 1547 (1991), that required physical force or submission to be present for
determining a seizure occurred). Circumstances that may indicate a seizure
include the presence of several officers, the display of a weapon, or the “use
of language or tone of voice indicating that compliance with the officer’s
request might be compelled.” United
States v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 1877
(1980).

An
officer must possess reasonable suspicion that criminal activity is afoot to
justify a stop. See Terry v. Ohio, 392 U.S.
1, 21, 29, 88 S. Ct. 1868, 1880, 1884 (1968).
The officer must point to specific, articulable facts to sustain a
showing of reasonable suspicion. Cripps,
533 N.W.2d at 391. An “officer’s
determination is made in light of his or her experience that criminal activity
may be afoot.” State v. Ingram, 570 N.W.2d
173, 176 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997)
(quotation omitted). In determining
whether an investigative stop is justified, appellate courts review all the
events and circumstances surrounding the stop.
Britton,
604 N.W.2d at 87.

There were two stops here. The first occurred when the officer stopped
the car because of the headlight defect.
The second happened when the officer instructed Bryant to stay near the
car while the officer searched it. When
Bryant began to move away from the area, the officer made it clear that Bryant
was not free to leave. We believe that
a reasonable person faced with a uniformed police officer’s command not to
leave the area would understand that he was not free to go. It is the second stop that is in issue, and
the question is whether the officer had a reasonable suspicion of criminal activity
that would justify the second stop. We
hold that he did not.

After
the first stop, the officer told the driver of Bryant’s car that he was free to
leave. Nothing occurred immediately
after that to give the officer a reasonable suspicion of criminal activity,
which is a prerequisite for an additional stop. Neither Bryant nor his companions acted suspiciously. On the contrary, Bryant readily consented to
the search of his car. The officer saw
nothing in the car or in the possession of any of the individuals that would
arouse his suspicion.

The state argues that the
circumstances reveal that the officer knew Bryant and the others from prior
contacts, that the traffic stop occurred after dark in a parking lot, and that
the officer was alone and was unsuccessful in his efforts to call for a
backup. But none of these circumstances
reasonably raised suspicion of criminal activity and they all existed before
the officer unequivocally released the individuals after the proper traffic
stop. The state points to no additional
facts that would justify the second stop.

We also
reject the state’s argument that Bryant was not actually stopped until he began
to run away and the officer commanded him to stop. The state suggests that, until that moment, there occurred only
an attempted stop. However, it is the
officer’s conduct, and not a suspect’s physical acquiescence, that determines
whether a stop has occurred. See In re
Welfare of E.D.J., 502 N.W.2d at 781 (holding that juvenile was
seized the moment an officer ordered him to stop, not moments later when the
juvenile actually acquiesced to the order).

Similarly,
we reject the state’s arguments that Bryant was committing the offense of
leaving the scene of a traffic stop and that the officer had to keep Bryant
near the car during the search to obviate allegations of missing or damaged
items. As to the first argument, the
traffic stop had ended and the officer had released Bryant and the others. The second argument is unsupported by any
authority. See Beltowski v. State, 289
Minn. 215, 217, 183 N.W.2d 563, 564 (1971) (unsupported arguments will not be
considered). We affirm the trial court’s ruling that the second stop was an
illegal seizure.

Suppression of
jacket

The
exclusionary rule prohibits the admission at trial of any evidence obtained by
the police in the course of violating an accused’s constitutional rights. Wong Sun v. United States, 371 U.S. 471,
484, 83 S. Ct. 407, 416 (1963). The
rule applies also to any evidence obtained as the fruit of any improper police
conduct. Id. at 485, 83 S. Ct. at
416. Courts have held that evidence
discarded by a suspect in response to an illegal stop is subject to the
exclusionary rule as “fruit of the poisonous tree.” See, e.g., In re Welfare of E.D.J., 502 N.W.2d at 783
(finding that cocaine dropped after the suspect was unlawfully directed to stop
inadmissible as “fruit of the poisonous tree”).

It was
in response to the illegal stop that Bryant discarded his jacket. The trial court did not err in suppressing
the contents of the jacket as “fruit of the poisonous tree.”

Although
it was proper for the trial court to suppress the contents of Bryant’s jacket,
it was error to dismiss the charge of obstructing legal process. Two rules apply. First, the application of the “fruit of the poisonous tree” doctrine
to discarded objects has yielded this rule in Minnesota:

An attempt to dispose of
incriminating evidence, however, is a predictable and common response to an
illegal search. The proper application
of the exclusionary rule requires that evidence of such an attempt be
suppressed if the initial police intrusion was illegal.

State v. Balduc, 514 N.W.2d 607, 611 (Minn. App.
1994) (citation omitted). This rule
establishes that the taint of the illegal seizure continues as to the contents
of the jacket.

The
second rule focuses not on discarded objects but rather on a suspect’s conduct
in response to the illegal police procedure.
Despite an initial illegality by police, evidence that a suspect
responded by assaulting an officer, resisting arrest, or obstructing legal
process is not suppressible. See City of
St. Louis Park v. Berg, 433 N.W.2d 87, 89-90 (Minn. 1988) (holding
that evidence of defendant’s resistance to arrest by officers who illegally
entered his home was not suppressible).
Citing State v. Bale, 267 N.W.2d 730, 732-33 (Minn. 1978), the
supreme court in Berg said that suppression depends on whether the evidence
sought to be suppressed arose from an exploitation of the initial police
illegality. Berg, 433 N.W.2d at 90.

Specifically,
the test is

whether,
granting establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.

Here
the officer was going to search for drugs or weapons. His illegal seizure of Bryant resulted in the discovery of
illegal drugs. That discovery was a product
of the illegal seizure. Accordingly,
suppression was appropriate.

However,
evidence of the conduct that resulted in the charge of obstructing legal
process came about by means sufficiently distinguishable from the exploitative
behavior. Thus, that evidence was not
suppressible and the trial court erred in holding otherwise. This ruling is reversed and the matter is
remanded for further proceedings on that charge.